P L D 1969 Lahore 666 (PLP)

(7) An abrasion, 1" x 1", on the left knee in front. (8) An abrasion, 1/3" x 1/3", on the right knee in front. On internal examination, he found that the first rib on the left side was slightly chipped off at its base. Pleura was injured on the left side under injuries Nos. 1 and

2. The left lung showed four holes, and the lung also showed a cut, 1/4" x 1/4" x 1/4", in the middle corresponding to injury No.

1. Three bullets were recovered from the dead body. The stomach contained‑ four ounces of semi‑digested food. The cause of death, according to the doctor, was shock and haemorrhage resulting from the injuries to the left lung, the large and small intestines and left pelvic bone. These injuries to the vital organs were sufficient according to him to cause death in the ordinary course of nature. Injury No. 1 was caused by some sharp‑edged weapon, while injuries Nos. 2 to 6 were caused by some fire‑arm, and injuries Nos. 7 and 8 were caused by some blunt weapon. Under cross‑examination, he stated that injury No. 1 indicated that the sharp‑edged weapon was used from upward to downward. In the case of injury No. 2, the direction of the wound was from below upward. In the case of injury No. 3, the course of bullet was almost horizontal, while the course of injury No. 4 was also slightly upward he doctor further stated as follows : "I do not think that there is any possibility that after receiving the above mentioned injuries the deceased could cover any distance".

7. The appellants in their statements in the Court of the committing Magistrate and at the trial generally denied the pro secution allegations and pleaded false implication on account of enmity. They did not produce any evidence in defence.

8. The prosecution relied, at the trial on :‑ (i) the ocular testimony furnished by Muhammad Yusuf, Lal Hussain, Muhammad Iqbal and Mehar Din P. Ws.; (ii) the motive evidence furnished by Muhammad Yusuf (P. W. 9), Muhammad Rafi (P. W. 13) and Mumtaz Ahmad (P. W. 14); (iii) the recovery evidence with regard to the blood‑stained knife Exh. P. 1 furnished by Ghulam Sarwar (P. W. 7) and Muhammad Jan (P. W. 8); and (iv) the medical evidence.

9. The learned Sessions Judge rejected the motive evidence with regard to the incident alleged to have taken place about a month prior to the occurrence in which the deceased had between both the appellants. The learned trial Judge also rejected the prosecution evidence with regard to the illicit relations between Zahur Ahmad appellant and the deceased. The prosecution evidence with regard to the recovery of the blood‑stained knife Exh. P. 1 was also rejected as worthless. Out of the four eye witnesses, Mehar Din was not relied on. The learned State counsel has not challenged the afore‑mentioned conclusions of the trial Court and that reasons for the same. We have, therefore no reason to differ with the learned Sessions Judge in the above conclusions.

10. This would leave only the ocular testimony furnished by Muhammad Yusuf, Lal Hussain and Muhammad Iqbal P. Ws. which has to be considered with the medical evidence and the F. I. R. etc. The F. I. R. is a very important document for being considered in connection with an occurrence. This gives a first impression of the prosecution case and if it is spontaneous and straight forward it must go a long way in carrying the conviction with the Court. In the present case, however, it has been urged for the appellants that the F. I. R. is enshrouded in suspicion. There is a police post at Taxila at a short distance from the place of occurrence and no report was lodged at the police post. There is no mention in the F. I. R. Exh. P. C. zither, as to why the report was not lodged at the Police Post. At the evidence stage, an effort was made to claim that the A. S. I. incharge of the police post was on leave without a substitute. Sub‑Inspector Gulsher Ahmad (P. W. 15) stated that there was a writer con stable at the police post, who could record the statement of the complainant at the police post. In the next breath however he corrected himself to claim that the writer constable was debarred under the rules from taking down the statement of the complainant. No rules have been produced before us which debarred the writer constable from recording the statement of the complainant and in our opinion there are none. According to Sub‑Inspector Gulsher Ahmad, the first informant had gone to the police station in a truck and the distance between the police station and the place of occurrence is six miles. The occurrence is alleged to have taken place at 7 p.m. According to the Sub‑Inspector, the first information had reached the police station at 8‑30 p.m., and the recording of the F. I. R. had been completed at 9‑30 p.m. The sub-mission made for the appellants that there has been a delay in lodging the F. I. R. which has not been suitably explained, is not devoid of force. Even if the complainant party had gone to the Mission Hospital and again returned to the spot, it could not have taken more than a few minutes. The police station could have been reached even if the police post had to be avoided, within about half an hour of the occurrence. Actually, the first informant reached there at 8‑30 p.m., and the recording of the F. I. R. is claimed to have taken one more hour. The Sub‑Inspector and the complainant left for the spot at 9‑30 p.m. and reached there at 10 p.m. The recording of the F. I. R. also seems to have taken more than its normal time. Hence there is merit in the submission made for the appellants that the conduct of the complainant in not lodging the F. I. R. at the police post Taxila as well as, the delay in lodging the F. I. R. which was completed at 9‑30 p.m., would mean that the complainant party was utilising the time for building up a suitable story and making a proper selection of the witnesses who were to be assigned various parts in the prosecution story. An argument was also addressed for the appellants that the F.I.R. had actually been recorded at the spot. Muhammad Yusuf P. W. admitted in his additional statement recorded in this Court that he had stated in the Court of the committing Magistrate that he had made his statement before the Sub -Inspector at the spot. He could not recollect as to whether he had stated before the committing Magistrate or not, that he had signed that statement at the spot. According to the English record he had stated that he had signed the statement at the spot, while the Urdu record was silent. Since the benefit of any reasonable doubt has to go to the defence, the F. I. R. in view of the afore‑mentioned circumstances has become suspect.

11. The medical evidence is also not supporting the ocular testimony and is, to a considerable extent, in conflict with the same. According to the post‑mortem report, four ounces of semi‑digested food were found present in the stomach of the deceased. Muhammad Yusuf P. W. has claimed that he and the deceased had taken their midday meals on that day at about 3‑4 p.m. This is not the usual time for midday meals and the claim might have been necessitated by the medical evidence on the point.

12. According to the medical evidence, the knife Exh. P. 1 bad been used from upward to downward to cause injury No.

1. According to the inquest report the length of the dead body from head to feet is shown as six feet, in column No.

18. This means that the deceased was quite a tall young man and it is claimed that he had fallen to the ground after receiving the knife blow. It is not explained by the prosecution evidence as to what was the exact position of the victim and the assailant which produced in result, the direction of the knife injury as observed at the time of the post‑mortem examination.

13. All the four bullet injuries show blackening which means that the pistol might have been fired from a distance of about six inches. The ocular evidence does not support this stand. According to Lal Hussain P. W., Yusuf appellant was about five to six feet away when he had fired at the deceased, and according to Mehar Din P. W. Yusuf was about four to five paces away. This claim is falsified by the medical evidence.

14. All the injuries found on the dead body of the deceased indicate a particular direction in which the assailants were stand ing at the time of inflicting the injuries. The eye‑witnesses are not uniform on that point. According to Lal Hussain P. W. Yusuf appellant v‑as towards the back of the deceased at the time of inflicting the injuries. He had, however, stated in the Court of the committing Magistrate that Yusuf had come from the front side and fired from the front. According to Muhammad Iqbal P. W., Yusuf appellant was towards the left when he had fired at the deceased. According to Mehar Din P. W. Yusuf had fired from the front.

15. The track of the bullets in injuries Nos. 2, 3 and 4 is also not explained by the ocular testimony it was from below upward in injury No. 2, slightly upward in injury No. 4 and almost horizontal in injury No.

3. The eye‑witness testimony shows that the victim and Yusuf appellant were standing when the latter had fired in quick succession and that the victim had fallen after receiving the bullet injuries and after having received a knife injury. As already mentioned, the deceased was about six feet in height and the tracks of the bullets in injuries Nos. 2 and 4 do not support the eye‑witness testimony that the victim and the assailant were standing when the firing had taken place. According to the site plan, the occurrence had taken place at point No. 1 (in black) and the deceased had staggered to point No. 2 (in black) on the platform and then rolled on to the gutter further ahead at point No. 7 (in red). The blood‑stained earth had been taken by the police from the platform mentioned above, which is at a distance of 161 feet from point No. 1 (in black) indicated as the place of occurrence. The police did not recover any blood from the place of occurrence and no trial of blood is claimed to have been found between point No. 1 and the platform mentioned as point No. 2 (in black). According to the medical evidence, the deceased could not have moved at all after receiving the injuries. The ocular evidence, therefore, is falsified with regard to the place of occurrence as well.

16. The eye‑witness testimony consists of two parts. Muhammad Yusuf P. W., paternal uncle of the deceased, claims to have accompanied him from the house while Muhammad Iqbal, Lai Hussain and Mehar Din P. Ws. claim to have been attracted to the spot from the hotel of Lal Hussain P. W. indicated by point No. 3 (in black). At the evidence stage, an effort has been made in the statements of the eye‑witnesses to eliminate point No. 1 (in black) and to suggest that the occurrence had taken place near about the footpath. This was probably due to the statement of the doctor that the victim could not have moved after receiving the injuries. The second effort noticeable in the eye‑witness testimony is to reduce the distance between points Nos. 3, 4 and 5 (all black) to enable Lai Hussain, Muhammad Iqbal and Mehar Din P. Ws. to have reached point No. 5 (in black) in time to have witnessed the entire occurrence as they have claimed. Lal Hussain sometime says that he was closing the hotel when he heard the hue and cry and sometime says that he had already covered some distance but the witnesses were on the horns of a dilemma as the house of Lal Hussain was opposite to the houses of Muhammad Iqbal and Mehar Din P. Ws. and if Lal Hussain had, after closing his hotel, reached point No. 4 (in black) the other two witnesses might have covered some distance in the opposite direction and all three of them could not have reached point No. 5 (in black) in a few seconds which the occurrence had taken. According to the medical evidence, four pistol shots had been fired at the victim and no bullet etc. was found stuck up anywhere near about. Zahur Ahmad appellant had given the knife blow immediately after the pistol shots. Pulling the trigger four times and the giving of the knife blow would have taken only a few seconds and we are unable to accept the claim of Lal Hussain, Muhammad lqbal and Mehar Din that they had reached point No. 5 (in black) after hearing the hue and cry, well in time, to witness the entire occurrence. The prosecution version with regard to the hue and cry is not uniform, nor is there any clear indication as to the time at which the hue and cry was raised and whether it was by Yusuf P. W. or the victim or both, and whether there was enough time between the raising of the hue and cry and the occurrence, during which the eye‑witnesses could be attracted from the hotel of Lai Hussain P. W. Muhammad Iqbal P. W. claims to be a Tonga Stand Chaudhari appointed by the police near the hotel of Lal Hussain P. W. It is admitted in the prosecution evidence that on the day of occurrence, there were no Congas at the stand after 5 p.m. He was, therefore, only a chance‑witness at the hotel of Lal Hussain P. W. at the alleged time of occurrence and so was Mehar Din P. W. In our opinion, the presence of Muhammad Iqbal and Mehar Din P. Ws. at the hotel of Lal Hussain P. W. at the time of occurrence is highly doubtful, and it is again difficult to accept the prosecution claim that Lal Hussain, Muhammad lqbal and Mehar Din P. Ws. had, on hearing the hue and cry, been able to reach point No. 5 (in black) well in time and had witnessed the occurrence.

17. Muhammad Yusuf P. W. and Lal Hussain P. W. are both related to the deceased. They are not straightforward or truthful witnesses. They had denied at the trial that Lal Hussain P. W. was related to the deceased. On the request of the learned defence counsel, both of them were allowed to be re‑summoned to be confronted with their earlier statements. The learned state counsel lied not opposed this request. Muhammad Yusuf P. W. however, went against the said order to the Supreme Court for Special Lave to Appeal and engaged a counsel to appear before the Supreme Court at Dacca. When he failed there, he put in an application in this Court for the order allowing additional evidence to be reviewed and set aside. When he also failed here, he and Lal Hussain P. W. remained absent from this Court on three hearings in spite of service and on various pretexts. Non-bailable warrants had to be issued against them for their arrest. Notices were also issued to their sureties and notices were also issued to them to show cause why action should not be taken against them under section 174, P. P. C. It was only them that Muhammad Yusuf and Lal Hussain P. Ws. appeared. Lai Hussain P. W. admitted that he had stated in the Court of the Sessions Judge, Rawalpindi, in the year 1950 that Farzand was his maternal uncle (mamun) and that his (Farzand's) son Mahboob, was his sala (wife's brother). The other sister of this Mahboob was the mother of the deceased. This means that Lal Hussain P. W. was related to the deceased not only through his wife but also through his mother. In spite of this clear admission he continued to make futile efforts to explain away the afore mentioned earlier statement and to deny his relationship with the deceased‑ This would mean that Muhammad Yusuf and Lal Hussain P. Ws. were highly partisan in character and were not at all impartial as witnesses. They have also perjured themselves. Muhammad Yusuf P. W. claims to have started from his house along with the deceased and to have witnessed the occurrence. It is not clear from his statement as to whether the two were joint or separate. If the deceased and his father had already separated From Muhammad Yusuf P. W. there is no reason to think that the two bad gone to the house of Muhammad Yusuf P. W. together to have meals and that they had again left for the shop together. Muhammad Yusuf states under cross‑examination as follows:-- It is wrong to say that the deceased had no independent business or a regular source of income. It is also wrong to say that he was dependent on me. He has his own independent business which he used to transact at my shop. We had a joint business. We had not specified our shares in the partner ship. We had joint earning and joint living. I had stated before the learned C. M. that `whenever Sikandar Hayat was in need of money he used to borrow from me. He did not have any other source of living'. What I meant was that Sikandar Hayat deceased used to have money from me whenever he needed. There was no question of loan. He would spend the money on himself which he had from me." The claim of the witness that the deceased had his own independent business which he used to transact at the shop of the witness and that the two had joint business without any specified shares is abso lutely confusing. The witness states further on that about the days of the occurrence, they used to leave for the shop at 5 a.m., and to return to the house at about 3‑4 p.m. It is not clear as to why the two had left for the shop again at about 7 p.m. as that would not be the normal business period gain, it is claimed by the prosecution that the deceased had about a month before the occurrence, given a beating to both the appellants, when he was single‑handed and that the relations between the deceased and the appellants were strained. It is not clear as to how the deceased had allowed the two appellants to reach within six inches of his person from which distance Muhammad Yusuf appellant had been able to fire his pistol at him and it is also not clear as to why he and Muhammad Yusuf P. W. could not overpower the two appellants and Muhammad Yusuf does not claim to have made any effort to rescue the victim. The story of the occurrence, as disclosed by the eye‑witnesses, does not fit in with the medical evidence with regard to the distance from which the deceased had been inflicted the injuries and it is also not clear under what circumstances the deceased had permitted the two assailants to come so close to him especially in view of the strained relations between them and especially if Muhammad Yusuf P. W. was also present to accompany the deceased. In our opinion, it is not possible to accept the claim of Muhammad Yusuf P. W. that he was accompanying the deceased at the time of the occurrence and had witnessed the occurrence.

18. The result is that the active evidence and the recovery evidence as also one of the eye‑witnesses, have been discarded by the learned trial Judge. The F. I. R. has become suspect. The eye witnesses cannot be accepted to have witnessed the occurrence. Their testimony is belied by the medical evidence with regard to the time of occurrence, the place of occurrence and the injuries received by the deceased. The place of occurrence is surrounded by houses, several hotels and many shops and it is admitted that several people had reached the spot immediately after the occurrence. Some others from the neighbouring shops and houses might have witnessed the occurrence. None of them has come forward to support the prosecution case. In the circum stances, there is not, in our opinion, sufficient evidence to support, the conviction of any of the two appellants. This appeal is, therefore, accepted, the convictions recorded against the two appellants and the sentences imposed upon them are set aside and they are ordered to be set at liberty at once if not required to be detained in some other case. The sentences of death imposed upon) them are not confirmed. S. Q. Appeal accepted.